Monday, 30 March 2009

Amnesty and Torture

Should an amnesty for acts of torture be recognised by other states? Such was implicitly one of the underlying questions in a case decided on by the Court today. In Ould Dah v. France, the applicant - a Mauritanian army officer - complained that he had been convicted by a court in France for acts of torture committed in Mauritania. The acts were committed in 1990 and 1991 by the applicant and others when acting as guardians in a prison following ethnic clashes. Two years later, in 1993, Mauretania adopted an amnesty law which safeguarded the applicant against prosecution. In 1998, Ould Dah visited France as part of his military training. Following action by several human rights NGOs, he was arrested by the French authorities and prosecuted for torture. Eventually he was sentenced in proceedings in which France used the universal jurisdiction clause for acts of torture from the UN Convention against Torture (CAT).

The applicant's main complaint in Strasbourg was that France hasd violated the prohibition of retroactive punishment (article 7 ECHR), since he could not have foreseen that the Mauretanian amnesty law would be set aside to the benefit of French law. Today, the European Court decided that this complaint was manifestly ill-founded. The application of French penal law had been sufficiently foreseeable. It reiterated - and referred to ICTY case law - that the prohibiton of torture is part of ius cogens. Importantly, the Court distinguished the case from its judgment in Al-Adsani (2001), in which it held that states could provide procedural immunity in civil proceedings concerning torture. In the case at hand, Ould Dah, the Court held that by contrast the penal responsibility of an individual was at stake. The Court assessed that the exercise of universal jurisdiction of parties to the Convention against Torture would become devoid of all meaning if it could not be applied through national laws. Thus, giving precedence to amnesty laws of the country in which the torutre occurred would render the aims of CAT meaningless. The Court explicitly mentioned that it followed the approach of the UN Human Rights Committee and the ICTY in this matter.

Interestingly, the Court did not rule out that the necessity to prosecute instances of torture could clash with the will to achieve reconciliation in the society at stake, but it indicated that in the case of Mauretania no process of reconciliation had been started. In addition, it hinted that the Mauretanian amnesty law could be qualified as abusive udner international law,. The door for other solutions is thus kept open a tiny bit, but the Court in this case squarely and rightly positioned itself on the side of the precedence of the prohibition of torture over other legal rules.

The decision is available only in French, but a press release in English can be found here. for an original press release from 2005 on the applicant's conviction in France, click here.